The State of Western Australia v THN

The State of Western Australia has appealed against the sentence of THN, who was convicted of sexually penetrating a child under 13 years of age and four counts of indecently dealing with a child under 13 years of age. The State contends that the individual sentence of 2 years' immediate imprisonment imposed for the sexual penetration offence charged in count 4 was manifestly inadequate, and that the total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle. The Court of Appeal allowed the appeal on both grounds, and resentenced the respondent to 4 years' immediate imprisonment on count 4 and a total effective sentence of 5 years 6 months' imprisonment. The Court found that the individual sentence of 2 years' immediate imprisonment imposed for the sexual penetration offence charged in count 4 of the indictment was manifestly inadequate. The Court observed that the offending was not isolated but rather was part of a persistent course of conduct, and that it involved a gross abuse of the trust which had been placed in the respondent. The Court concluded that the sentence of 2 years' immediate imprisonment imposed after trial for count 4 (which represents only 10% of the maximum penalty) was unreasonable or plainly unjust. The Court also found that the total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle. The Court held that a total sentence of 3 years 6 months' immediate imprisonment did infringe the first limb of the totality principle because it was less than the sentence which the Court would regard as commensurate with the seriousness of the offence charged in count 4. The Court resentenced the respondent to 4 years' immediate imprisonment on count 4 and a total effective sentence of 5 years 6 months' imprisonment.